Tim Soutphommasane

Debates about race can often divide more than unite. Yet the contest over section 18C of the Racial Discrimination Act has united Australians in one sense. There has been an emphatic affirmation of our commitment to racial tolerance.

I welcome the federal government's decision not to proceed with repealing section 18C. In ruling out changes to the Act, the government has taken heed of widespread concerns about its proposed reform. These have come not just from multicultural and Aboriginal communities. The legal profession, human rights experts, psychologists and public health professionals have all objected to weakening laws against racial vilification.

According to information obtained by Professor Simon Rice of the ANU's law school, more than 76 per cent of submissions made about the government's exposure draft opposed the repeal of section 18C, with 20 per cent supporting the government's proposal. A Fairfax poll in April showed that 88 per cent of people believed it should remain unlawful to offend, insult or humiliate others because of race.

The debate about the exposure draft was revealing. The proponents of section 18C's repeal argued the provision had a chilling effect on free speech. However, one freedom doesn't exist in isolation. A good society is one in which everyone can be free to live with dignity. Just as we rightly value freedom of expression, so we also value freedom from racial vilification.

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Australians understand that free speech shouldn't give licence for racial abuse. Most of us grasp that racial vilification can inflict harm on its targets. Among other things, it can diminish another person's ability to exercise their freedom of speech. It does nothing to edify or elevate the national conversation.

Unfortunately, some fail to see the human side of the matter. Some libertarian free speech advocates say we should expose mouldy racist ugliness to the disinfectant of sunlight. But we shouldn't talk about freedoms as though it were merely an exercise in philosophical speculation.

Just ask someone who has copped racial abuse. I've yet to come across a target of racial abuse who would agree that being called a "boong" or "gook" or "sand-nigger" in public has been an edifying experience. Very few targets of racism would welcome the experience for bringing bigotry out into the open.

It is only right that we have laws that make public acts of racial vilification unlawful. Laws help to set a civil standard for acceptable conduct. Those who believe that we can leave the task of combating racism to civil society ignore a few things.

First, we can't assume that everyone can always be effective in speaking up. Power matters. It's one thing for a well-educated professional who may be part of a majority group to say, "More speech". It's another to expect that those from more marginal or vulnerable positions can speak from the same platform.

Second, it becomes a lot harder to exercise "social sanctions" when the law isn't on your side. When organisations adopt voluntary codes about racial vilification, they frequently turn to the law for guidance. When individuals or communities make private complaints about racism, having the implicit support of the law can be decisive in securing a response. We can't conveniently separate the law from civil society.

In any case, we have many laws that regulate offensive speech. As a society, we accept that criminal summary offence laws can involve convictions for offensive language. We accept that defamation laws mean we can be liable for paying six-figure damages if we offend someone's reputation. Why wouldn't we then accept that someone can be held to account for subjecting another person to racial abuse?

This goes to the heart of the matter. The Racial Discrimination Act isn't about censorship; it's about accountability. Exercising one's freedoms comes with duties and responsibilities. It involves being made to answer for when you infringe upon another's freedom.

One good thing in having such extensive debate has been that more Australians now understand in detail how federal racial vilification laws work. More people are now aware that you can't be "prosecuted" or "convicted" for racial vilification - that making a complaint leads to conciliation. More now understand that when matters do reach the courts, section 18C covers acts causing serious and profound effects, and not acts that cause trivial slights.

More Australians appreciate now that section 18C is balanced by section 18D. This section provides explicit protection of free speech - namely, anything that is artistic work, academic inquiry or fair comment and fair reporting. Libertarian free speech advocates were never able to answer one basic question: What is it that you want to say that isn't already protected under section 18D?

One recent development, however, is worth further attention. While the federal government's announcement about section 18C was made alongside one about new anti-terror laws, the two remain distinct issues. The Racial Discrimination Act, after all, covers only the attributes of race, colour, ethnicity and national origin. While race and religion can overlap, religion isn't specifically covered by section 18C.

One thing, though, is much clearer. The members of "Team Australia" have said unambiguously that the Act should stay just as it is. The Prime Minister has made a good leadership call. He has confirmed that any right to be a bigot mustn't come at the expense of being free from bigotry's effects.

52 comments so far

Regardless of community sentiment Abbott would have forced the changes through parliament if the LNP could have gotten them through the senate.

Abbott deserves no credit for seeing the writing on the wall and dumping the changes. Politically cunning is not leadership.

Sadly the far right wing conservatives that control our government and their supporters like Tim Wilson and Andrew Bolt still want 18C gone. A win at the next election will see these changes back on the table albeit likely fronted by a more adept politician than Brandis.

Seano is wrong. What's driving Abbott is the need to prevent the Muslim communities in Australia (there isn't one single Muslim community) from closing up and cutting off the flow of counter-terrorism information. There have been no successful terrorist attacks here since the US World Trade Centre atrocity and every anti-terrorist conviction in Australia has been secured with information coming from within Muslim communities. To keep this channel open, it is necessary to ensure that Muslims in Austalia don't feel themselves under siege. The RDA amendments backdown is one aspect of that.

Considering the merits of the legislation, I note the following sentence of Tim Soutphommasane:

"However, one freedom doesn't exist in isolation."

Dr Soutphommasane puts freedom of speech alongside freedom from harrassment. I think a better approach is to say that "the freedom on one individual doesn't exist in isolation". I hold to Alexander Berkman's position of "No opinion a law, no opinion a crime", but my problem with the proposal to amend the RDA is that it seemed to be a mechanism to give freedom of speech to racists, but not to people who would call them out for being racists.

As an example, if some radio shock-jock made some vile racist comment on his program, the proposed amendments to the RDA would have made this legal. On the other hand, I couldn't write a letter to The Age denouncing him as a racist, because of the law of defamation. I think Sections 18C and 18D of the RDA provide a very "light touch" censorship and, if they are to be removed or amended (as, on balance, I think they should be), my support would be conditional on the right of others to call bigots and racists out for what they are.

Commenter

Greg Platt

Location

Brunswick

Date and time

August 07, 2014, 11:38AM

I disagree, Tony Abbott deserves praise for bringing this topic for debate. I think it did Australia no harm having a debate about something so closely related to free speech when so many people around the world are being locked up for a very long time for what they are saying against a policy or position of a group or a government. And this is evan so, given that the world is in very troubled times and that the debate was on such a difficult topic as racial discrimination and that at times the debate was acrimonious and divisive.

I think we need to acknowledge that while our country is far, far from perfect and that we have a massive amount of improvement to make in so many areas that we do at least have some good things going for our young democracy.

Commenter

Acrimonious Debate

Date and time

August 07, 2014, 7:55PM

@ Gregg, great response. But don't you think that the selective enforcement of it undermines any benefits and politicizes citizenry speech. It might be a light touch, but it is still a touch by Parliament. And unfortunately it touches on political, academic, scientific, religious and cultural speech.

Commenter

Hater

Location

Sydney

Date and time

August 07, 2014, 8:50PM

The idea that all muslims are somehow connected in way can affect the "flow of counter-terrorism information" is nonsense. As is the idea that muslims are the only people in the community who rejected Brandis' "right to be a bigot" superseding their right to be allowed to live their life in peace.

And of course this is also a nonsense."I hold to Alexander Berkman's position of 'No opinion a law, no opinion a crime'". Section 18C does not make opinions illegal.

Abbott's dumping of the changes to 18C is about political expedience, he can't get the changes to through parliament as much he would like to and is merely attempting to lessen the damage to his lame duck government.

Commenter

Seano

Date and time

August 08, 2014, 9:23AM

I fail to see why a military commander who commits his troops to a foolhardy and ill thought out attack against an overwhelming opponent then belatedly withdraws them when the inevitable happens should be applauded for his "leadership"! It's not good leadership to as consistently and stubbornly misread the reality as Abbott has done with the Australian electorate.

Commenter

fred

Date and time

August 07, 2014, 7:38AM

Sorry to burst your bubble but constant flip flopping and ll positive headlines is not good leadership. It is chaos and stinks of a government with no plan, they pushed and bullied this change and like all bullies they turned to jelly once their childish tactics failed.

Commenter

Pieron

Date and time

August 07, 2014, 7:39AM

Sorry mate the Prime Minister didn't make a "good leadership call "he made a decision for strictly political purposes.To save his hide.!

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